Humber v. Commissioner of Social Security

Filing 31

MEMORANDUM AND ORDER granting in part and denying in part 21 Motion to Dismiss for Lack of Jurisdiction: For the reasons set forth above, the defendant's motion (Docket no. 21) is granted in part and denied in part. The case is remanded to the SSA for a hearing before an ALJ on Mr. Humber's claim that he is owed retroactive benefits by the SSA. The Clerk of Court shall enter judgment accordingly and close this action. (Signed by Magistrate Judge James C. Francis on 6/29/2015) Copies Mailed By Chambers. (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
JAMES HUMBER,
:
:
Plaintiff,
:
:
:
- against :
:
COMMISSIONER OF SOCIAL SECURITY,
:
:
Defendant.
:
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
The

plaintiff,

James

Humber,

14 Civ. 5520 (JCF)
MEMORANDUM
AND ORDER

brings

this

action

pro

se

pursuant to 42 U.S.C. § 405(g), seeking judicial review of a
decision

of

the

Commissioner

of

Social

Security

(the

“Commissioner”) denying his claim for retroactive Supplemental
Security Income (“SSI”) benefits. The parties consented to proceed
before me for all purposes pursuant to 28 U.S.C. § 636(c).

The

Commissioner then filed a motion to dismiss the complaint for
failure to exhaust administrative remedies. By order dated June 3,
2015, I converted the Commissioner’s application to a motion for
summary judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure and provided the plaintiff an opportunity to respond
accordingly.
For the reasons stated below, the motion is granted in part
and denied in part, and the case is remanded to the Social Security

1

Administration (the “SSA”) for a hearing before an Administrative
Law Judge (“ALJ”).
Background
Mr.

Humber

filed

applications

benefits and SSI in September 2003.

for

disability

insurance

(Declaration of Katherine Rae

Lingen dated Feb. 19, 2015 (“Lingen Decl.”), ¶ (3)(a); Disability
Determination and Transmittal, attached as Exh. 1 to Lingen Decl.,
at 1).

The Commissioner denied his applications on April 2, 2004.

(Lingen Decl., ¶ (3)(a); SSA Disability Determination at 2).
Pursuant to the SSA’s guidelines, Mr. Humber requested a hearing
before an ALJ to challenge the agency’s determination.

(Lingen

Decl., ¶ (3)(b); SSA Letter dated June 10, 2004, attached as Exh.
2 to Lingen Decl.).

Following a hearing on March 1, 2005, the ALJ

awarded Mr. Humber disability insurance benefits and found him
eligible for SSI payments as of May 5, 2003. (Lingen Decl., ¶
(3)(c); SSA Decision dated March 10, 2005, attached as part of Exh.
3 to Lingen Decl., at 4).
On May 11, 2005, the SSA informed Mr. Humber that his first
payment of SSI benefits in the amount of $7,367.72 was being
withheld pursuant to an interim assistance reimbursement agreement
that he had entered into with the Westchester County Department of
Social Services (“DSS”). (SSA Notice dated May 11, 2005, attached

2

to Complaint (“Compl.”) at 11).1

Pursuant to the agreement, Mr.

Humber agreed that the SSA would reimburse DSS for any assistance
paid to him while his application for SSI benefits was pending from
September 2003 through December 2003.

(Lingen Decl., ¶ (3)(g);

Letter of Elizabeth B. Bake dated Nov. 17, 2011 (“Bake 11/17/11
Letter”), attached as Exh. 7 to Lingen Decl.).
On July 7, 2011, Mr. Humber sent a letter to the Commissioner
and filed a request for reconsideration seeking review of the amount
of retroactive SSI benefits paid to him.
Letter

of

James

Humber

dated

July

(Lingen Decl., ¶ (3)(d);
7,

2011

&

Request

for

Reconsideration dated July 6, 2011, attached as Exh. 4 to Lingen
Decl.).
inquiry

In response, the agency acknowledged that Mr. Humber’s
related

to

the

payment

of

his

retroactive

disability

benefits but indicated only that an underpayment of $909.00 had
occurred in his case and stated that it was depositing that amount
in his bank account.

(Lingen Decl., ¶ (3)(e); Letter of Elizabeth

B. Bake dated July 27, 2011, attached as Exh. 5 to Lingen Decl.).
Mr. Humber sent the agency six additional letters concerning the
unresolved issue of the diversion of funds to DSS.

(Lingen Decl.,

¶ (3)(f); Letters of James Humber dated Aug. 4, 2011, Sept. 7, 2011,

1

This page number refers to the page number assigned by the
Court’s electronic case filing system.

3

Oct. 4, 2011, Nov. 3, 2011, Nov. 15, 2011, and Nov. 28, 2011
(collectively “Humber Aug.-Nov. 2011 Letters”), attached as Exh. 6
to Lingen Decl.). In each, he requested information regarding his
retroactive benefits but did not request a hearing on the agency’s
determination of his request for reconsideration. (Lingen Decl., ¶
(3)(f); Humber Aug.-Nov. 2011 Letters).

In his last two letters,

he alleged that DSS did not receive any of the $7,367.72 in
retroactive benefits. (Letters of James Humber dated Nov. 15, 2011,
and Nov. 28, 2011).
In response to Mr. Humber’s November 3, 2011, letter, the SSA
sent him a letter reiterating that it had sent his retroactive
benefits payment of $7,367.72 to DSS. (Lingen Decl., ¶ (3)(g); Bake
11/17/11 Letter). The SSA’s letter explained that DSS is the agency
responsible for deducting the assistance paid to Mr. Humber from the
amount given to DSS by the SSA, but it failed to make any reference
to the SSA’s administrative appeals process. (Bake 11/17/11 Letter)
(“After

the

department,

[DSS]
not

deducts

the

[SSA],

the

assistance

paid

is

responsible

for

to

you,

refunding

that
any

remaining balance to you. . . .”).
On December 2, 2011, Mr. Humber submitted a second request for
reconsideration stating that he had not received an overpayment.
(Lingen Decl., ¶ (3)(h); Request for Reconsideration dated Dec. 2.
2011, attached as Exh. 8 to Lingen Decl.) (“I received 3 different
4

notices telling me 3 different things.

I am not overpaid, and I

should not be made to pay back any money you say I owe.

It was

SSA’s mistake that I was overpaid.”). It is unclear from the record
to what this request for reconsideration was referring and whether
it was distinct from the claim for retroactive benefits in Mr.
Humber’s initial request for reconsideration.

(Lingen Decl., ¶

(3)(d); Letter of James Humber dated July 7, 2011 & Request for
Reconsideration dated July 6, 2011).
Mr. Humber then filed this action on July 17, 2014, seeking
judicial review of the SSA’s determination of his retroactive SSI
benefits.

Mr. Humber argues that it is “unfair” for the SSA to

claim that he has not exhausted his administrative remedies because
the SSA has failed to act on his request for three years.

(Humber

Aff., ¶ 10).
Discussion
A.

Standard of Review

Under Rule 56 of the Federal Rules of Civil Procedure, a court
will grant summary judgment if “the movant shows there is no genuine
issue of material fact and the movant is entitled to judgment as a
matter of law.”

Fed. R. Civ. P. 56(c); accord Celotex Corp. v.

Catrett, 477 U.S. 317, 322-323 (1986); Marvel Characters, Inc. v.
Simon, 310 F.3d 280, 285-286 (2d Cir. 2002); Andy Warhol Foundation
for the Visual Arts, Inc. v. Federal Insurance Co., 189 F.3d 208,
5

214 (2d Cir. 1999).

The moving party bears the initial burden of

identifying “the absence of a genuine issue of material fact.”
Celotex, 477 U.S. at 323. The opposing party then must come forward
with specific materials establishing the existence of a genuine
dispute. Fed. R. Civ. P. 56(c). Where the non-movant fails to make
“a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear
the burden of proof at trial,” summary judgment must be granted.
Celotex, 477 U.S. at 322.
In assessing the record to determine whether there is a genuine
issue of material fact, the court must resolve all ambiguities and
draw all factual inferences in favor of the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Vann v.
City of New York, 72 F.3d 1040, 1048-49 (2d Cir. 1995).

However,

the

evidence

court

must

inquire

whether

“there

is

sufficient

favoring the nonmoving party for a jury to return a verdict for that
party,” Anderson, 477 U.S. at 249, and grant summary judgment where
the

non-movant’s

evidence

significantly probative.

is

conclusory,

Id. at 249-50.

speculative,

or

not

“Where the record taken

as a whole could not lead a rational trier of fact to find for the
non-moving

party,

there

is

no

‘genuine

issue

for

trial.’”

Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986) (quoting First National Bank of Arizona v. Cities
6

Service Co., 391 U.S. 253, 288 (1968)).
In addition, the court’s review of the record is limited to
facts that would be admissible at trial.

Rule 56 states that

affidavits in support of or against summary judgment shall “set out
facts that would be admissible in evidence.”

Fed. R. Civ. P.

56(c)(4). Accordingly, “only admissible evidence need be considered
by the trial court in ruling on a motion for summary judgment.”
Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997).

A party may

not oppose a summary judgment motion on the basis of inadmissible
evidence, unless the party can “show[] that admissible evidence will
be available at trial.”

Burlington Coat Factory Warehouse Corp. v.

Esprit De Corp., 769 F.2d 919, 924 (2d Cir. 1985); see also Santos
v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001) (“Affidavits submitted
to defeat summary judgment must be admissible themselves or must
contain evidence that will be presented in an admissible form at
trial.”).
Furthermore, the submissions of a pro se plaintiff like Mr.
Humber must be liberally construed on “the understanding that
‘implicit in the right to self-representation is an obligation on
the part of the court to make reasonable allowances to protect pro
se litigants from inadvertent forfeiture of important rights because
of their lack of legal training.’” Abreu v. Astrue, No. 11 CV 0521,
2011 WL 3420609, at *2 (E.D.N.Y. Aug. 4, 2011) (quoting Abbas v.
7

Dixon, 480 F. 3d 636, 639 (2d Cir. 2007)). Nevertheless, proceeding
pro se does not relieve a litigant from the usual requirements of
summary judgment, and a pro se party’s “‘bald assertion,’ completely
unsupported by evidence, is not sufficient to overcome a motion for
summary judgment.” Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y.
1995) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
B.

Exhaustion of Administrative Remedies

Section 205(g) of the Social Security Act provides for limited
judicial review of final decisions of the Commissioner.

That

section states, in pertinent part, that “[a]ny individual, after any
final decision of the Commissioner of Social Security made after a
hearing to which he was a party . . . may obtain review of such
decision” in a “district court of the United States.”
405(g) (emphasis and alteration added).

42 U.S.C. §

The SSA has promulgated

regulations outlining the process by which an applicant must exhaust
administrative remedies prior to appealing a “final decision” in
federal court.

After the SSA makes a determination regarding an

initial request for benefits, an applicant who wishes to contest
that decision must first seek reconsideration, then request a
hearing before an ALJ, and then, if still unsatisfied, request a
review of the ALJ’s decision by the Appeals Council.

20 C.F.R. §

416.1400(a); Louis v. Commissioner of Social Security, No. 09 Civ.
4725, 2010 WL 743939, at *2 (S.D.N.Y. March 2, 2010).
8

Only after

a plaintiff has completed these steps and obtained a decision from
the Appeals Council will the decision become “final” and potentially
eligible

for

federal

district

court

review.

20

C.F.R.

§§

416.1400(a), 416.1481; see also Escalera v. Commissioner of Social
Security, 457 F. App’x 4, 6 (2d Cir. 2011).
Mr. Humber initiated the appropriate administrative procedure
before

seeking

judicial

review

by

submitting

reconsideration of the May 11, 2005, notice.2

a

request

for

(Lingen Decl., ¶

(3)(d); Request for Reconsideration dated July 6, 2011).

However,

after receiving both the July 27, 2011, and November 17, 2011,
letters from the SSA denying his request for reconsideration, Mr.
Humber sent additional letters in which he inquired about his
retroactive benefits but did not request a hearing.
¶ (3)(e), (g); Humber Aug.-Nov. 2011 Letters.

(Lingen Decl.,

As a result, Mr.

Humber has “not pursued his claim at all requisite levels of the
administrative process, and he has not satisfied the exhaustion
requirement.”

Cost v. Social Security Administration, 770 F. Supp.

2d 45, 50 (D.D.C. 2011), aff’d, No. 11-5132, 2011 WL 6759544 (D.C.
Cir. Dec. 2, 2011).

Accordingly, his claim is not a challenge to

2

In his request for reconsideration, Mr. Humber writes that
he is “requesting a hear” regarding his retroactive benefits.
(Request for Reconsideration dated July 6, 2011).
However, a
request for reconsideration is a step distinct from requesting a
hearing before an ALJ. 20 C.F.R. § 416.1400(a).
9

a “final decision” under § 405(g) that is subject to review by this
Court.
C.

Exceptions to Exhaustion

There are certain circumstances in which a federal court may
review an SSI claim even though it has not been adjudicated on the
merits in a hearing that has produced a “final decision.” “[A]
plaintiff's failure to exhaust administrative remedies can be
excused if (1) the claim is collateral to a demand for benefits, (2)
exhaustion would be futile, or (3) requiring exhaustion would result
in irreparable harm.” Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir.
1997).

Mr. Humber’s claim “is not collateral to his demand for

benefits, as it involves a demand for [retroactive] benefits.”
Escalera, 457 F. App’x at 6.

Although he contends that the agency

failed to act on his request and has penalized him each time that
he inquired about his retroactive benefits, he has not shown that
a hearing before an ALJ and, if necessary, subsequent review by the
Appeals Council would be futile.

See id. at 6-7.

“For exhaustion

to be futile, there must be a ‘certainty of an adverse decision or
indications that pursuit of administrative remedies would be clearly
useless.’”

Cost, 770 F. Supp. 2d at 50 (citing UDC Chairs Chapter,

American Association of University Professors v. Board of Trustees
of University of District of Columbia., 56 F.3d 1469, 1475 (D.C.
Cir. 1995) (internal quotation marks omitted)); see also Hall v.
10

Sebelius, 689 F. Supp. 2d 10, 23 (D.D.C. 2009) (finding that
plaintiff who “sought an administrative hearing, but received no
response from the SSA for approximately three years” had not fully
exhausted his administrative remedies).

Nothing in the record

suggests that the SSA would be unwilling to consider Mr. Humber’s
claim at a hearing before an ALJ.

Finally, Mr. Humber is currently

receiving benefits from the agency and has not shown that requiring
exhaustion would result in irreparable harm such that “no post hoc
relief would be adequate.” Smith v. Schweiker, 709 F.2d 777, 780 (2d
Cir. 1983).
Courts may also dispense with the hearing requirement when “the
plaintiff has raised a colorable constitutional claim relating to
the agency decision.”

Guerra v. Commissioner of Social Security,

No. 12 Civ. 6750, 2013 WL 3481284, at *3 (S.D.N.Y. July 1, 2013)
(internal quotation marks omitted).

The SSA’s actions here do not

constitute a violation of due process.

The agency responded to Mr.

Humber’s July 7, 2011, request for reconsideration on July 27, 2011,
and

on

November

17,

2011,

stating

in

the

latter

letter

its

determination as to the payment of retroactive benefits to DSS.
(Bake 11/17/11 Letter).

Although the determination did not notify

Mr. Humber of the proper procedure to contest the denial of his
request, he has not yet been denied an opportunity to request a
hearing or to exhaust his administrative remedies.
11

D. Remedy
Although, for the reasons discussed above, I may not reach the
merits of Mr. Humber’s claim, an unqualified dismissal of his action
would not be appropriate.

The SSA is required to provide notice of

how a claimant, especially a claimant proceeding pro se, may pursue
his administrative claims.3

See 20 C.F.R. § 404.911(a)(2), (b)(6);

Laursen v. Massanari, 164 F. Supp. 2d 317, 320 (E.D.N.Y. 2001) (“To
be added to the mix is the realization that many claimants for
social security benefits are not well educated or are not adept in
the English language; moreover, they invariably are not represented
by counsel. The courts have therefore charged the Commissioner with
a heightened responsibility to vouchsafe their rights, including the
need for express notice of procedural rules.”); Ardito v. Barnhart,
278 F. Supp. 2d 247, 256-57 (D. Conn. 2002) (finding that the denial
notice received by plaintiff violated his procedural due process
rights because it did not explain the consequences of reapplying for
benefits

rather

than

seeking

further

3

administrative

review);

“Consistent with this responsibility, the Commissioner asks
claimants under its ‘good faith’ regulation governing extension
requests, ‘[w]hether our action misled you,’ [20 C.F.R.] §
404.911(a)(2), and whether the clamant was given ‘incorrect or
incomplete information about when and how to . . . file a civil
suit.’ [20 C.F.R.] § 404.911(b)(6).” Laursen, 164 F. Supp. 2d at
320 n. 3. Consequently, inadequate notification regarding how to
pursue administrative review is considered by the SSA itself to
excuse untimely requests for further review.
12

Christopher v. Secretary of Health and Human Services, 702 F. Supp.
41, 43 (N.D.N.Y. 1989) (“[T]he [Commissioner] has an affirmative
duty to avoid providing applicants with misleading information,
especially when applicant was without counsel at the time . . . and
relied on the plain language of her denial notice.”) (internal
quotation marks omitted); cf. Escalera, 457 F. App’x at 7 (finding
that agency did not mislead plaintiff to believe that in-person
objections at agency office would satisfy SSA appeals process
because “its notices plainly stated that he had to make the request
in writing, within 60 days”). Because the determination denying Mr.
Humber’s retroactive benefits did not include information about the
subsequent procedural requirements for review, including the need
to request a hearing before an ALJ, he did not have sufficient
information

about

how

to

pursue

his

administrative

remedies

properly.
Remand for a hearing is therefore warranted.

“Indeed, a full

and fair adjudication of [Mr. Humber’s] claims would be best
achieved by allowing the SSA an opportunity to correct any of its
own errors,” including any errors made in conjunction with the
retroactive benefits transferred to DSS, “and compiling a record
which is adequate for judicial review with the benefit of the SSA's
experience and expertise.” Cost, 770 F. Supp. 2d at 51.

13

In the

interest of justice and efficiency, this case is thus remanded to
the SSA for a hearing before an ALJ.

20 C.F.R.

§

404.900(a).

Conclusion
For the reasons set forth above, the defendant's motion (Docket
no. 21) is granted in part and denied in part.

The case is remanded

to the SSA for a hearing before an ALJ on Mr. Humber's claim that
he is owed retroactive benefits by the SSA.'

The Clerk of Court

shall enter judgment accordingly and close this action.

SO ORDERED.

e.~CAM-w Ve. FRANCIS IV
D STATES MAGISTRATE JUDGE

Dated:

New York, New York
June 29, 2015

Copies mailed this date:
James Humber
111 Lockwood Ave., Apt. 410
New Rochelle, NY 10801
Tomasina Digrigoli, Esq.
Special Assistant U.S. Attorney
c/o Social Security Administration
26 Federal Plaza, Room 3904
New York, NY 10278

4

faith.

An appeal from this determination would not be taken in good
28 U.S.C. § 1915(a)(3).
14